R OI (Eritrea) v First Tier Tribunal (Immigration and Asylum Chamber) (First Respondent) Secretary of State for the Home Department (Second Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon |
| Judgment Date | 14 March 2017 |
| Neutral Citation | [2017] EWCA Civ 1379 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C2/2016/2809 |
| Date | 14 March 2017 |
[2017] EWCA Civ 1379
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Simon
Case No: C2/2016/2809
Mr Kevin Smyth (Solicitor Advocate) (instructed by Kesar & Co Solicitors) appeared on behalf of the Applicant
No Appearance on behalf of the Respondents
This is a renewed application for permission to appeal a decision of the Upper Tribunal Immigration and Asylum Chamber made by Judge Jordan, dated 13 June 2016 following a hearing on 3 May in which he refused the applicant permission to bring judicial review proceedings challenging the respondent's decision in effect, if not in substance, to remove him to Italy.
The relevant facts can be stated shortly. The claimant is a citizen of Eritrea who left that country in 2012. He travelled to Europe and claimed asylum in Italy. On 23 October 2014, Italy accepted responsibility for his asylum claim in accordance with the Dublin III regulation.
The applicant then came to this country and the respondent wishes to remove him to Italy. The applicant does not wish to go. He submits that his asylum claim should be considered here and that this is his entitlement.
A number of points are taken. Ground 1 is that the deadline for transfer to Italy as set out in Article 29 of the Regulation has passed and that consequently, this country is bound to take responsibility for the applicant's asylum claim. I shall refer to this as the "Dublin clock point".
Ground 2 is, or perhaps better to say "was", a point about procedural fairness. The 13 June decision was founded on the need for the applicant to show a nexus between the asylum claim and the decision to remove. The complaint is that this had not been part of the respondent's claim and was raised for the first time at the substantive hearing and gave rise to procedural unfairness. There is a fall-back argument which forms a separate ground that the Upper Tribunal failed to give reasons for rejecting written submissions made on 6 May 2016 as to the interpretation of section 92(4)(a) of the Nationality Immigration and Asylum Act, 2002.
Mr Smyth, whose submissions have been of great assistance to the court, does not pursue that point, but he does pursue the substantive argument to which I turn now. Ground 3, which is a complaint that the Upper Tribunal fell into error in relying on Etame v Secretary of State for the Home Department [2008] EWHC Admin 1140, when concluding that there needed to be what has been referred to as a nexus between the asylum claim and the decision to remove. Again, there is a fall back argument that there was, in any event, the necessary nexus.
Ground 4 is a complaint that the Upper Tribunal materially misdirected itself when finding that there was no substantial difference between a certificate issued under section 4(7) of the 2002 Act and one issued under Part 2, schedule 3 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. On the facts of the present case, the former prevents the applicant from arguing in this country that removal to Italy would breach his human rights whereas the latter would not.
The respondent put in a written response which was considered by the single Lord Justice and which I too have considered. Taking the grounds in turn. As to ground 1, Article 29 of the Dublin III regulation requires that a transfer is to be made from a requested state (here the United Kingdom) "as soon as practically possible" and at the latest, within six months of acceptance of the request by another member state (here Italy) to take back the person concerned or the final decision on an appeal or review where there is suspensive effect.
The acceptance of the request occurred on 23 October 2014. The applicant was detained on 26 October 2016 with a view to his removal by 13 December 2016, which is six months from the date of the Upper Tribunal decision on 13 June 2016.
Mr Smyth has drawn attention to the following features of the prior chronology.
On 5 February 2014, Upper Tribunal Judge Sutton granted injunctive relieve preventing removal pending anapplication to bring judicial review proceedings or...
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